REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION IN THE CASE OF JOHN McGINTY v. HER MAJESTY'S ADVOCATE

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord MacLean

[2006] HCJAC 8

XC287/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

in

REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

JOHN McGINTY

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

_____________

For the appellant: Scott QC; Balfour and Manson

For the Crown: Mackay, AD; Crown Agent

18 January 2006

[1] On 12 June 1997 the appellant was convicted at Glasgow High Court of contraventions of (1) section 4(3)(b) of the Misuse of Drugs Act 1971 and (2) section 5(2) of the Act. Charge (1) as amended was that between 15 August 1995 and 27 September 1995 at a house at 62 Glenacre Drive, Glasgow, he and Yvonne Ellen Sloan were concerned in the supplying of a controlled drug, namely cannabis resin to another or others in contravention of section 4(1) of the Act.

[2] On 27 September 1995 Strathclyde Police Drugs Squad executed a search warrant at the locus libelled. In a bedroom occupied by the appellant they found various quantities of bank notes in bundles in plastic shopping bags and in a shoe box. The total sum recovered was £75,245.05. Nearly all of the notes were in denominations of £10 and £20. The appellant was unemployed at the time. The police also recovered three pieces of paper containing names and figures and an electronic note counter.

[3] The banknotes were sealed in six security bags and taken to the forensic science laboratory of Strathclyde Police. A sample of about a third to a quarter of the contents of each bag was tested for the presence of cannabis or cannabis resin. Each sample was immersed in solvent, the evaporated residue of which was then analysed. In each case the residue was found to contain the active principles of cannabis; but the amount was not quantified. The scientists who carried out the tests, Miss Gail Cochrane and Mr Campbell Stewart, were Crown witnesses. They concluded that the most likely cause of the contamination was that someone had handled cannabis or cannabis resin before handling the notes and had not washed his hands in the meantime. They could not say how many of the notes were contaminated with the active principles of cannabis or cannabis resin, nor how much of the contaminant was present in the sample tested. They accepted that there might have been only one or two contaminated notes in each sample. They did not discuss the possibility that the cannabis traces found by their examination were acquired during the general circulation of the notes.

[4] DC Ian Bell of the Drug Squad said that the three pieces of paper were tick lists and that they recorded the supply between 15 and 30 August 1995 of 923/4 kgs of cannabis resin, the supply continuing thereafter on various dates up to the date of the search. He suggested that the list recorded the receipt of substantial sums during that period. The notations on these lists included the word "bar," which in his experience referred to cannabis resin.

[5] The appellant gave evidence to the effect that the money had been given to him by his brother Joseph in the days immediately before the search, principally for the purpose of checking. The money came from an illegal operation conducted by his brother and others involving the sale of "outers," that is to say parcels of cigarettes, spirits, denims and fake designer products that were smuggled into the United Kingdom. The so-called tick list, with the exception of the last page, had been copied out by him from pieces of paper with notations supplied by his brother. It referred to his brother's trade in outers. The word "bar" in this document referred to a barrel of beer. Other witnesses, including Joseph McGinty, supported this account.

[6] In a report dated 19 September 1997 on the scientific aspects of this case Dr Richard Sleeman of NSA Limited, a specialist laboratory, referred to research findings that a large number of banknotes acquired traces of drugs in the course of circulation. For the finding of traces of cannabis on banknotes to have any evidential significance, it had to be demonstrated that the frequency and the levels of contamination found differed significantly from those found on banknotes taken from general circulation. The Crown evidence at the trial had not referred to the possibility that the traces were acquired in general circulation. Since traces of various drugs could be found on banknotes, the mere identification of a particular compound was unlikely to justify the conclusion that a particular quantity of money was linked with drugs. Dr Sleeman also concluded that there had been other deficiencies in the Crown evidence arising from the methodology that had been used.

[7] An appeal in this case was refused in 1999 (McGinty v HMA, 2000 SCCR 293). We need not go into the reasons. It is sufficient to say that the question of Dr Sleeman's report was raised by the appellant at that stage.

[8] The Scottish Criminal Cases Review Commission has referred the case to us on the view that there may have been a miscarriage of justice. They have drawn to our attention three significant matters. The first is Dr Sleeman's report. The second is a memorandum, signed by the Head of Chemistry and by the Principal Scientist of Strathclyde Police Forensic Laboratory, entitled "Examination of Money for Drugs." It is dated 18 June 1997, six days after the appellant was convicted. It records that the writers have discussed the examination of money for the presence of drug contamination with the Forensic Science Service, the Laboratory of the Government Chemist and the Scottish Forensic Science Liaison Group, and that all were of the opinion that the evidence obtained by such examination was "worthless and open to serious challenge." The third matter is that, in the light of Dr Sleeman's Report and their further study of the subject, Miss Cochrane and Mr Stewart now regard their test results as being no longer significant. We infer that they accept that their results cannot support the conclusions that they drew.

[9] The appellant has tabled a ground of appeal based on fresh evidence. Approaching this as a fresh evidence appeal, we are satisfied (a) that the three matters to which we have referred constitute fresh evidence; (b) that there is a reasonable explanation why it was not tendered at the trial, and (c) that there is independent support for the reason why Miss Cochrane and Mr Stewart did not express their present opinion at the trial. In our opinion, a verdict returned in ignorance of this evidence must be regarded as a miscarriage of justice (cf Cameron v HM Adv, 1987 SCCR 608; Kidd v HM Adv, 2000 SCCR 513).

[10] It may however be unnecessary for us to treat this case as a fresh evidence appeal. It may be sufficient for us to say that the evidence of the forensic scientists was significant evidence in the trial. The trial judge expresses that view in his Report. The advocate depute relied strongly upon it in his speech to the jury. The trial judge directed the jury carefully as to its relevance to the other evidence in the case. It is now obvious that that evidence ought not to have been given, and that it would not have been given if the Crown experts had been fully abreast of contemporary research studies on the subject. Since that evidence was given, we conclude that the appellant did not have a fair trial. On that view too there was a miscarriage of justice.